The EPA Is Gutting Regulations That Keep Us Safe

West, Texas

It was April 2013, and all across the small Texas town of West, the treetops were on fire. An ammonium nitrate explosion at the West Fertilizer Company’s storage facility had carved a 75-foot crater from the earth, flipping cars and coiling nearby train tracks. Some two dozen first responders had been on the scene before the burning plant unexpectedly blew; 12 of them were now dead. It was a catastrophe, an unimaginable horror for a town of 2,800 and the moment the regulatory wheels of the federal government began spinning.

Regulation is a dirty word—understandably so if you run a small business or interact with the federal bureaucracy with any frequency. In politics today, it is a third rail you piss on at your own peril, particularly if you are a member of the Republican Party. Scott Pruitt, the former Environmental Protection Agency administrator who was finally defenestrated in July 2018, built his legacy on the promise of rolling back as many environmental regulations as he could. Former coal lobbyist Andrew Wheeler, Pruitt’s replacement at the EPA, is far better schooled in Washington politics. And his goals are the same as Trump’s and Pruitt’s—to continue the most ambitious deregulatory agenda the country has ever seen.

Some regulations, however, exist for a reason. Gina McCarthy was the acting EPA administrator when the plant at West exploded. A Boston native, she was already reeling from the bombing of the Boston Marathon two days earlier, and the chemical disaster struck a nerve. The EPA, McCarthy likes to say, is first and foremost a public health agency. In 1970, after Ohio’s Cuyahoga River burned and smog reduced visibility in Los Angeles to a few hundred feet, Richard Nixon created a new “strong, independent” executive agency to clean up the air and water. In 1980, as Love Canal oozed hazardous chemicals into backyards and schools, Jimmy Carter worked with Congress to order the adolescent EPA to create the Superfund program.

After the disaster in West, EPA investigators pieced together a pattern that suggested chemical plants still weren’t exactly drowning in safety rules: More than 2,200 similar incidents had occurred from 2004 to 2013, injuring 17,000 people and killing 59. Nearly 177 million Americans—more than half the population—lived near facilities that handled potentially dangerous chemicals. To make matters worse, no regulations required companies to work with first responders to produce detailed emergency plans or transparent information about which chemicals were on site.

The EPA bureaucracy, roughly 15,000 employees strong, lumbered into action. McCarthy’s point man on chemical plants, assistant administrator Marty Stanislaus, traveled the country to meet with company owners, plant managers, and first responders. Emergency workers told him that, as in West, they often had no idea what chemicals were burning in these accidents. Managers of well-run facilities told him how they prevented accidents. The process took more than three years. “I challenge anyone to have the same kind of dialogue that I had around the country,” Stanislaus says.

For five decades, this is how things have worked at the EPA. Rules are hammered out, haggled over, and tempered by the input of hundreds of stakeholders over months and years. Environmentalists threaten to sue because the regulations are too weak, companies threaten to sue because they’re too tough, and often both sides end up suing at the same time. As McCarthy puts it, the federal rule-making process is grueling and laborious, and that’s the point. “It’s not supposed to allow radical change,” she says, “nor are you supposed to interfere in the economy or human beings’ lives without good reason or in more than a moderate way. We have to have a reason for government intervention.”

The new chemical disaster rule—technically an amendment to the EPA’s Risk Management Program Rule—was exceptionally moderate. Completed in January 2017, it didn’t restrict storage of the chemical that decimated West, but it did mandate that facilities share information with first responders and make better emergency plans. Environmentalists didn’t throw victory parties, and industry lobbyists didn’t gloat to reporters. No side “won.” The rule reflected what Stanislaus called the “hard balance” regulators must manage: keep plants running and communities safe. “I was proud of it,” McCarthy says.

Two months later, with a new president at Pennsylvania Avenue and an EPA administrator intent on crippling the agency, the EPA delayed the implementation of the chemical disaster rule.

Then, in August 2017, Hurricane Harvey rolled into Houston.

Washington, D.C.

If you believe anonymous White House sources, the final straw that ousted Scott Pruitt was a report that he had asked the president to fire Jeff Sessions and install Pruitt as the new attorney general.

In actuality, his was a death by a thousand scandals. Ever since candidate Trump campaigned on abolishing what he erroneously called the Department of Environment, the chaos inside the EPA has been one of the Beltway’s most salacious stories. Pruitt’s fall from John Galtian hero to Beltway swamp monster was almost impossible to turn away from. There were the first-class flights, of course, and the $ 43,000 soundproof privacy box. But who could forget the $ 130 fountain pens or the used Trump Hotel mattress? It would have been funny were the situation at the EPA not so desperately serious.

Andrew Wheeler, the new acting administrator, is another kind of Washington creature. A coal lobbyist who worked at the EPA during the first Bush administration and then served as an aide for Oklahoma Senator James Inhofe, one of the country’s leading climate deniers, Wheeler is a well-respected operator. On behalf of energy companies, he has lobbied for shrinking Bears Ears National Monument and against regulations that would have limited pollution from power plants.

Under Pruitt and now Wheeler, the EPA’s working agenda is impressive: On the past 19 months, the agency has gutted regulations on methane emissions, decided not to ban a likely neurotoxic pesticide it had previously planned to outlaw, loosened regulations on air pollution, halted efforts to increase gas mileage in new cars, relaxed rules on how coal plants store toxic coal ash, delayed implementing Obama-era smog-reduction rules, suspended regulations against unpermitted dumping in streams and wetlands, opted not to ban cancer-causing asbestos, and moved to rewrite regulations to reduce haze in national parks. All told, the agency has removed or is in the process of rescinding 76 different regulations. In the EPA’s first full year under Trump, penalties against polluters were down by almost 50 percent, compared to the first years under Clinton, Bush, and Obama.

But the public outrage has been relatively muted, glued as we have been to the mess unfolding in Washington. To really see the fallout from the Trump administration’s concerted attack on the EPA, you have to get outside the Beltway. For the past year, I’ve been talking to environmentalists, EPA bureaucrats, politicians, and everyday citizens. I’ve seen firsthand the consequences of the administration’s disdain for the environment. Out here in the hinterlands, away from the clickable headlines, the water is dirtier, the air is smoggier, and the chemical plants are more dangerous.

Houston, Texas

The chatter over the radio was urgent and clear: “Get out of the cloud. Get out of the cloud.”

Christy Graves, director of operations for emergency services in northeast Harris County, which includes Houston, Texas, was tailing an ambulance, following a path her team had devised earlier to avoid the wide-scale flooding. It was August 31, 2017—a week after Hurricane Harvey had made landfall—but the rain had come so hard and fast that many of the one-lane ranch roads in this corner of northeast Houston were still underwater.

The first responders were gunning it toward the Arkema chemical plant, in a suburb called Crosby, and the reports were chaotic and conflicting. A few blocks from the facility, they hit the unnaturally dense white cloud. Graves’ car filled with a strange smell, like bad nail polish or rotten eggs. She inhaled and immediately her sense of smell vanished. A moment later, her cellphone rang—a paramedic calling in the first victim. “It’s a cop,” the medic said, frantic. “Now I have two. Now I have three.” Graves suppressed an upwelling of panic and continued toward the burning facility.

Two days earlier, the last Arkema engineers had been evacuated by boat, leaving behind a flooded facility filled with organic peroxides—chemicals used to produce plastics. Just how unstable these would become as the generators failed and the compounds heated up was anybody’s guess. The worst-case scenario, the one scrolling across CNN’s ticker, was that the facility would soon explode. The plan, hastily devised by Arkema and local first responders, was to evacuate anyone nearby and wait for the blast.

Harris County sheriff’s deputies were manning a barricade a mile and half away from the facility. Two of the first responders who recounted their ordeal to me asked to remain anonymous, fearing retribution in their jobs. One deputy, whom I’ll call Sam, felt the effects first. There had been no explosion, but soon his eyes burned and he started coughing uncontrollably. An unearthly cloud hugged the ground as it enveloped them. Some deputies were gagging; others were down on their hands and knees. “Oh my god, what’s happening?” someone said. By the time Graves arrived on the scene, her paramedics were gasping for air, turning blue. Unable to speak in more than a croak herself, Graves tended to a thrashing, wild-eyed EMT in the back of an ambulance. The cops began to pile everyone into their service vehicles and drive away, struggling not to vomit in their laps.

Once they made it to the hospital, it became evident that no one was in immediate danger of death. Doctors treated the symptoms—persistent high blood pressure, headaches, burning throats—conditions ultimately diagnosed as “chemical pneumonia.” After the nurses left, Graves broke down and cried. “You can’t fathom what it feels like to be the director of an ambulance and understand that you’ve called in additional people and exposed them—to watch a paramedic writhe and wiggle,” she recalls. “I thought he was going to die. And for a brief moment, the terror that came over me was so intense that my brain was saying, ‘Get control, don’t start hysteria, get control.’”

In an email to Outside, an Arkema spokeswoman stated that the company had warned emergency-response coordinators that the organic peroxides would likely burn, and that any first responders in the vicinity should be wearing protective gear. But Arkema had also lobbied against the chemical disaster rule—its delay allowed the company to put off revealing exactly what chemicals were in its plant and making a detailed, coordinated emergency plan with local first responders. The nonprofit environmental law organization Earthjustice figures there have been at least 58 chemical disasters nationwide since the EPA halted the rule in March 2017.

On August 3 of this year, a Texas grand jury indicted the company for “recklessly” releasing a toxic cloud during Hurricane Harvey. Graves is also suing Arkema. She’s joined in the suit by more than a hundred others, including 23 first responders. The cops and EMTs who spoke with me are still feeling the effects: headaches that won’t go away, fluid in their lungs, decreased respiratory capacity. They’re all still under doctors’ care. “The effects we’ve got now, let’s say they clear up,” says Sam, who is also a party to the suit. “But what were we exposed to that was carcinogenic? Am I going to be getting cancer ten years down the road?”

Hurricane Harvey is the kind of nightmare scenario that regulations are designed for, when stringent safety rules can help both communities and industries most. But when the EPA moved to scuttle the chemical disaster rule, it said it was responding to concerns from “facility owners and operators.” Killing this regulation, the petrochemical industry had argued, would make business run smoother and keep costs down. Revealing what chemicals were stored in each plant, companies including Arkema claimed, would create major security risks.

Although Trump’s EPA has been particularly responsive to the interests of industry—Wheeler, the new administrator, is already taking flak for meetings he’s had with regulated companies—another group of actors has been instrumental in defanging regulations: conservative states like Texas, which have sued dozens of time to halt new rules in recent years. That’s why activists here and in other right-leaning states are particularly worried about a new tenant of Trump’s EPA that its political leaders call cooperative federalism. The agency’s website defines the theory as “working collaboratively with states, local government, and tribes to implement laws that protect human health and the environment, rather than dictating one-size-fits-all mandates from Washington.”

The practice can be seen in full bloom in Oklahoma, where the state was recently allowed to hack back federal rules that dictated the safe storage of coal waste products. Activists fear that in low-regulation havens where industry holds serious sway, cooperative federalism will be a wrecking ball. “I’m sure places like Texas are going to feel emboldened to do whatever they want and still get the approval of the [federal EPA],” says one EPA employee. That may be already in evidence. The watchdog group Environmental Integrity Project has found that over a five-year period, the state of Texas issued fines in less than 3 percent of reported illegal releases of air pollution, or 588 fines for 24,839 pollution releases. (In a press release, the state of Texas has claimed it’s more like 7 percent.)

(Staff Sgt. Daniel Martinez/Wikimedia Commons)

Nowhere is this more evident than in Harris County. The neighborhoods and incorporated cities that make up the southern half of greater Houston look like villages built into the clearings of a forest of refineries. At the turn of the new century, the air quality in Houston was ranked dead last in the country. It has since inched down to 11th most polluted city, thanks, environmentalists say, to new local and EPA rules, some enacted during the Obama years.

In Galena Park, a small town built into the industrial-chemical sprawl that stretches from Houston to the Gulf of Mexico, I took a “toxic tour” with Juan Flores, a community outreach coordinator for the Houston Air Alliance. The air’s never been clean in this corner of Houston, says Flores, who wears a gold chain with a large crucifix over his purple dress shirt and is running for mayor of Galena Park. Flores doesn’t even notice the smells anymore, he tells me as we drive around. But I sure do: Everywhere, the air stinks of sulfur and gasoline and shit.

Flores can signpost his life in Galena Park with industrial explosions and chemical disasters—which ones shook the glass and threw open doors in his elementary school classes, which ones dusted his family’s car with mysterious white ash, which ones killed or maimed or just plain stank. But now that the EPA has begun the process of rolling back more clean air regulations, the thought of more pollution troubles him.

“I’ve got a two-year-old daughter now,” Flores says as we drive past his child’s daycare. “She was actually born with a tumor in her left kidney area. She went through three surgeries, four rounds of chemo, and all that. I don’t know if this had anything to do it with it. Probably didn’t. I don’t know. It’s always in the back of my mind.”

Missoula, Montana

One day last winter, late for an interview and with snow funneling down into my boots, I found myself standing on a ponderosa-lined promontory a few miles east of Missoula, Montana, staring down at the confluence of the Clark Fork and Blackfoot rivers.

To an outsider like me, Montana can feel like the headwaters of the United States. Earlier in the day, on the other side of the Continental Divide, a similar magnetism had drawn me to the birthplace of the Big Muddy itself, the Missouri, where Lewis and Clark camped 213 years ago at the convergence of the Jefferson and the Madison. The waters that trickle down each side of the Rockies here, you quickly realize, feed flows that reach Oregon and Colorado and Kansas and Louisiana. The Trump administration is targeting at least four major regulations that keep water clean, including a key component of one of the country’s most important environmental laws. Out here in Montana, where the rivers are cold and the fly-fishing is a way of life, the future of these rules feels particularly vital.

The Blackfoot, which ends its 132-mile race down the mountains just outside Missoula, is the semi-mystical waterway of Norman MacLean’s classic novel A River Runs Through It. It’s “no place for small fish or small fisherman,” as MacLean famously put it. It is also, according to David Brooks, executive director of Trout Unlimited’s Montana chapter, one of those rare things in environmental remediation: an unbridled success.

Protecting rivers is a long game, Brooks explains. A rangy environmental historian and activist who wears his business-casual unconvincingly, he says that the Blackfoot had “gone to complete shit” by 1991, when Robert Redford shot his film adaptation of A River Runs Through It. Decades of mining spills and runoff from livestock and logging operations had so fouled the river—a 1975 study showed trout numbers were down by 83 percent in places—that principal photography for the film had to take place on the Gallatin, outside Bozeman.

The river might still be unfishable were it not for the Clean Water Act, a landmark piece of legislation passed with strong bipartisan support in 1972. The law barred companies from dumping into the nation’s rivers without a permit and tasked the newly formed EPA with protecting all the “Waters of the U.S.”—a mushy, undefined term that regulators later decided covered nearly all the nation’s waterways, from ephemeral streams to the Mississippi. Protecting all those small wetlands and creeks is how, ecologists argued, you protect the rivers they eventually flow into. “Water flows downhill, streams and wetlands lead to rivers,” Brooks says. “The public got it.”

In 2015, after a series of lawsuits challenged that broad interpretation of Waters of the U.S. (WOTUS, to those in the know) and the Supreme Court failed to settle the matter, Obama’s EPA stepped in to clarify the rule in 2015 and codify nearly 45 years of policy.

Within months of taking office, Trump began the process of undoing all this. In January 2018, the EPA formally suspended the Obama-era WOTUS rule, blocking regulations that helped prevent pollution and fertilizer runoff from reaching nonnavigable waterways—the source of a third of America’s drinking water.

Watching sheets of ice flow down the Blackfoot, it’s hard for me to imagine why we would do anything that could threaten the health of a river like this again. But if you’re looking for a technical justification for this deregulatory pogrom—a rationale for all of this—it’s probably what the Trump appointees have taken to calling “EPA originalism.”

Under Obama, EPA originalists argue, the agency began enforcing decades-old regulations far more aggressively than their authors ever intended. The new WOTUS rule, Trump has said repeatedly, is “such a horrible, horrible rule,” adding that it is “one of the worst examples of federal regulation” and “a massive power grab.” By 2016, the rule was so unpopular with rural Americans that then-candidate Trump began name-checking it at rallies and Republican congress members signed onto statements decrying the “job-killing” water rules. Pruitt, in an op-ed, called it “breathtaking in its overreach, and flatly contrary to the will of Congress”—the antithesis of EPA originalism, he argued.

Thomas Jorling, one of the primary authors of the Clean Water Act in 1972, disagrees. A Republican staffer on the Senate Ways and Means Committee in the early 1970s, Jorling and two colleagues labored for a year and a half over the language of the law. “The intention of the Congress was to reach as far into the hydrologic cycle with the regulatory program as it could,” he told me. The goal, he says, was simple: to protect all drinking water.

The Clean Water Act passed the Senate with 74 votes, Jorling reminds me. In his day, he adds, “Nobody could have expected that a new administration—Republican or Democrat—would come in with an agenda to unravel the bipartisan legacy of conservation and environmental protection like this.”

In few places is the clash between the extractive industry and outdoor recreation so clear as in Montana. But in recent years, the state has awakened to the fact that its staggering natural beauty is a selling point.

Extractive industries are built into the state’s DNA—they don’t call Montana the Treasure State for nothing. The territory was settled in large part thanks to the hundreds of silver and copper and gold veins that snake across it, and the nonenergy mineral mining industry—basically everything but coal—still employs thousands and was last valued at $ 1.3 billion, in 2013.

Meanwhile, the Outdoor Industry Association reckons that outdoor recreation is now the largest sector of Montana’s economy, bringing in $ 7.1 billion last year. In addition, 12 million tourists spent $ 3.3 billion last year en route to places like Yellowstone and Glacier.

Berkeley Pit: Butte, Montana (NASA)

“It’s enlightened self-interest for us to want to protect the places where we play,” says K.C. Walsh, president of Simms Fishing, from his office overlooking the flats of eastern Bozeman. We’re sitting above the factory where Simms employs 180 people to construct the kind of high-end Gore-Tex waders you lie about when your significant other asks how much they cost.

We’re talking about a proposed mine on the Smith River, a project that’s about as welcome as an outhouse breeze in this liberal pocket of the state. The Smith is the only river in Montana you need a permit to float. Snagging one of those licenses is like winning the nature lottery—only about a thousand are given out each year. The prize is five days with no cell service on the kind of cold, deep water that 15-inch rainbow trout love. “It’s part of that ‘last great place’ mentality of Montana,” Walsh says.

As the bulletin board in any hip Bozeman coffee shop will quickly alert you, a mining company called Sandfire Resources America, part of an Australian-owned conglomerate, wants to dig along a rich vein of copper that abuts a tributary at the headwaters of the Smith. Boosters say the mine will create 200 new jobs. But Walsh and others worry that a spill on the Smith would be devastating, not just to the ecology but to the 70 or so people that studies show make their living off recreational fishing on the river.

Montanans are no stranger to mining spills, which happen when a dam holding back polluted water breaks, releasing heavy metals into the water table. An Earthworks study suggests that 74 percent of gold mines nationwide, for example, have experienced spills. Because of this history, repeated again and again across the state, Obama’s EPA devised a rule that would require mining companies to prove they could fund a cleanup. This was good news for Montana’s coffers, says Bonnie Gestring, Northwest program director at the environmental nonprofit Earthworks. “We’ve had about five major bankruptcies in the last 20 years,” she says, ticking off mining companies that went bust and left torn-up landscapes in their wake. “In none of those cases was the financial assurance sufficient to cover the cost of cleanup.” Gestring estimates that Montana and the EPA have spent perhaps north of $ 200 million mopping up after failed mines.

On December 1, 2017, Trump’s EPA decided that mining companies do not need to have as much money on hand. “EPA is confident that modern industry practices, along with existing state and federal requirements, address risks from operating hard-rock mining facilities,” the agency said in a statement. Additional financial assurance, it added, “would impose an undue burden on this important sector of the American economy and rural America.”

Montana is a place, in my mind at least, almost defined by its stream and rivers: Missoula and the Clark Fork; Billings and the Yellowstone; Bozeman and the Gallatin, where Simms workers often get some casting in before or after work. “Do you think tourists will come see a denuded or diminished landscape?” Walsh says.

All these waterways are under threat from mining or agricultural waste, yet the EPA under Trump has undermined clean water regulations at a rate unseen in generations. The effects will be felt everywhere that water flows.

San Francisco, California

While the list of deregulatory goals at Trump’s EPA can feel exhaustive—chemical plants, air pollution, more haze in national parks, keeping asbestos legal—there is one target, a “hoax created by and for the Chinese,” in the president’s words, that rises above the rest. That is, of course, climate change.

On a surprisingly warm day late last winter, I attended a public hearing in San Francisco—a contentious and unhappy legally mandated meeting to discuss the repeal of Clean Power Plan. Proposed in 2014 under Gina McCarthy, this is Obama’s most controversial EPA legacy, a rule that aims to fight climate change by promoting cleaner energy sources at the expense of coal. (Repealing the “so-called Clean Power Plan” was item number one on an action plan sent by coal baron Bob Murray, Andrew Wheeler’s former boss, to the Trump administration shortly after inauguration. The wish list has proven a valuable guide to the administrator’s agenda, environmentalists say.)

The San Francisco meeting was held on what must have felt like enemy territory for the EPA political appointees on hand. In front of cameras and reporters, California politicos and environmental leaders strutted up to the microphone and made their outrage known. “We in California have already made our choice. Our future is in clean energy,” said Mary Nichols, head of the California Air Resources Board. “Now more than ever is the time for the United States to be a leader and a partner in this effort.”

California is often held up as an environmental leader, though it has eight of the ten cities with the highest ozone pollution in the country, according to the American Lung Association, and remains a major oil-producing state. Still, says Jared Blumenfeld, former head of the EPA’s Region 9, which includes California, “It’s a place where you’ve got the political will. People move to California because they love the outdoors; they want to recreate and surf and fish. So you have people that vote that way.”

The state also feels singled out by the Trump administration. While “cooperative federalism” at the EPA has allowed Oklahoma to cut its coal regulations, in California it has meant legal threats to the state’s longstanding right to institute strict emission standards on new cars. In a liberal state run by politicians jockeying for position within the self-appointed resistance, the EPA’s threats were like punting a hornet’s nest. “This administration’s decision to place another target on California’s back will be met with a fight,” said Senator Kamila Harris in April. Unsurprisingly, the state has become a leader in pushing back against the Trump administration’s agenda. California is party to at least 27 lawsuits against the administration, on issues ranging from net neutrality to the separation of undocumented immigrant families. At least ten of the suits are over EPA regulatory rollbacks, including WOTUS, methane emissions, and drilling on Native American land.

California’s suits, legal experts say, may slow down the EPA’s deregulatory agenda enough to “run out the clock” if the president isn’t reelected in 2020. That’s because it turns out that undoing a regulation can be just as laborious as making one. Trump’s EPA, most of the lawsuits charge, didn’t jump through the legal hoops required. “Either by design or inadvertence,” says Joseph Goffman, a former EPA assistant administrator who is now at Harvard, “Pruitt’s administration found themselves trying to see how much they could get away with. Now they’re running into the limits that administrative law imposes.”

Lawsuits aside, it’s hard to be too optimistic. Jared Blumenfeld, who attended the Clean Power Plan meeting for his podcast, Podship Earth, figures that even if Trump isn’t reelected, it’ll take another eight years to replace the hundreds of staffers the EPA has lost. And as Christine Todd Whitman says, “So much of the current Republican pushback is not about environmental regulations—it’s about regulations, period.” Gallup polls may show that people support clean air policies and increased gas mileage, but who is about to stand up for increased regulations?

Blumenfeld thinks the movement has lost its way. “In the battle for the hearts and minds of Americans,” he says, “the environmental movement has been all mind and no heart. We need to bring the heart back. The only reason we protect something is because we love it. The only reason we love it is because we experience it. Get outside—be the fuck outside. Go hiking, and once you feel that connection to the mountain, or the stream when you’re fly-fishing, that connection to nature is what will give us the momentum and inspiration to have these fights. Otherwise it’s just about technical language in the federal register.”

Outside the meeting in San Francisco, environmentalists cheered and honked and promised they’d continue to #resist. Children beat drums and politicians mugged for the cameras. Behind the podium, a woman wearing a heavy polar bear costume enthusiastically waved a sign that read PRUITT—KEEP YOUR PAWS OFF THE CLEAN POWER PLAN while the suits pontificated. A few minutes later, the polar bear fainted from the heat.